The Franklin County Children’s Services, in conjunction with the Columbus Police, investigated a charge of child abuse which resulted in the state filing criminal charges against the parent. Several of the criminal charges were adjudicated in favor of the parent and others resulted in a hung jury. Subsequently, the parent filed an action against the Children’s Services agency under Section 1983. The foregoing section was enacted to provide civil remedy for deprivation of federally protected rights caused by persons acting under color of state law. However, there had never been a judicial determination as to the applicable statute of limitations. 

 

            The trial court had applied a two-year statute of limitations pursuant to O.R.C. 2305.10 to the 1983 claims. This decision barred the cause of action. However, the Court of Appeals reversed finding that the appropriate statute of limitations was the four-year limitation period codified in O.R.C. 2305.09(D). 

 

            The Ohio Supreme Court had been requested to determine the correct statute of limitations and, in paragraph 1 of its opinion, stated the following:

 

            “We are asked to determine which statute of limitations govern actions filed in Ohio under Section 1983, Title 42, U.S.Code. The United States Supreme Court has instructed that in Section 1983 actions, courts must apply a state’s general or residual statute of limitations that governs personal-injury actions. Owens v. Okure (1989), 488 U.S. 235, 109 S.Ct. 573, 102 L.Ed.2d 594. We hold that R.C.2305.10, which contains a two-year limitations period, is Ohio’s general statute of limitations governing personal injury in Ohio. Therefore, we reverse the judgment of the court of appeals.”

 

 

 

            A complaint for personal injury was filed against the named defendant as well as several John Doe defendants identified only as “Unknown Company” or “Unknown.” Crucial to the analysis was the fact that counsel for the plaintiff attempted to serve the new defendants by certified mail. As will be more fully developed, this procedural step was deemed fatal to the plaintiff’s attempt to use the relation back provisions of O.R.C.P. 15 and thus avoid the impact of the statute of limitations.

 

            In paragraphs 10, 14 and 15, the Ohio Supreme Court set forth the appropriate standard and stated the following:

 

            “Because of the unique situation addressed by Civ.R. 15(D), specific requirements accompany this rule. (Citation omitted.) One requirement is that the summons is to contain the words “name unknown.” Civ.R. 15(D). Another requirement is that the summons must be personally served upon the formerly fictitious, now identified, defendant. Service on the formerly fictitious now identified, defendant by certified mail is ‘clearly not in accordance with the requirement of Civ.R. 15(D).’

 

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            LaNeve filed his original complaint in this matter on May 28, 2004, the last day of the two-year statute of limitations for his personal-injury claim. LaNeve’s complaint invoked Civ.R. 15(D) by designating certain defendants as ‘John Doe, unknown.’ Within the Civ.R. 3(A) one-year period for obtaining service on a complaint, LaNeve amended his complaint, identifying China Shipping and ContainerPort as defendants. Because the amended complaint against China Shipping and ContainerPort was filed outside of the statute of limitations, LaNeve clearly attempted to invoke the relation-back principles in order to maintain his action against these defendants.

 

            Contrary to the express requirements of the rule, the summons for LaNeve’s complaint or amended complaint, however, did not include the words “name unknown” with respect to any of the defendants, and it was served by certified mail. LaNeve did not attempt, or obtain personal service of the summons for either the complaint or the amended complaint on China Shipping or ContainerPort. As a result, LaNeve failed to meet the specific requirements of Civ.R. 15(D); LaNeve is unable to claim the benefit of the relation back of the amended complaint as provided by Civ.R.3(A); and LaNeve’s attempted action against China Shipping and ContainerPort is, therefore, outside the applicable statute of limitations.”

 

            In order to avoid potential errors in pleading practice, the specific phraseology “name unknown” should be followed in naming the fictitious defendant and, quite clearly, personal service must be utilized against the parties who are the subject matter of the relation back amendment and, to be extremely cautious, it would be recommended that personal service be utilized upon the original defendant(s). Failure to do so resulted, in this case, in the new party defendants being dismissed.

 

 

 

 

            A fight ensued between Thomas Fares and David Snowden on the latter’s property. Mr. Fares claimed injuries and subsequently sued Mr. Snowden. Mr. Snowden subsequently filed a declaratory judgment action requesting the court to find that Hastings had a duty to defend. The trial court granted summary judgment for Mr. Snowden and denied the liability insurance carrier’s motion for summary judgment.

 

            On appeal, the court affirmed the lower court’s decision and found applicable and controlling the Ohio Supreme Court’s decision of Preferred Mut. Ins. Co. v. Thompson (1986) 23 Ohio St.3d 78. In paragraphs 20 and 22, the court stated its reasoning and holding and indicated the following:

 

            “’Generally, an individual may no purchase liability insurance coverage against a claim arising from his intentional infliction of injury upon the person or property of another. (Citation omitted.) Allowing the purchase of such coverage would remove an important disincentive to the commission of intentional torts – the resultant threat, through civil damage claims, to the tortfeasor’s personal assets. No purpose is served, however, by denying coverage to an insured who, while acting in self-defense, intentionally injures another. The insured who acts in self-defense does so only as a reaction to his attacker, and any injuries suffered by the attacker are not the result of the insured’s misconduct.

 

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            ‘... When an insured admits that he intentionally injured a third party and the surrounding circumstances indicate that he acted in self-defense in causing the injury, the insured’s insurance company may not refuse to defend the insured from the third party’s intentional tort claim on the grounds that the third party’s injuries fall within an exclusion from coverage for ‘bodily injury ... which is either expected or intended from the standpoint of the insured.’ Thompson 23 Ohio St.3d at 81-82.”

 

            The court went on to consider, but reject, the fact that the liability insurance carrier’s policy included language different than that found in the Thompson case. In paragraph 24 of its opinion, the court noted this argument and stated the following:

 

            “It appears that no case in Ohio has dealt with the issue of whether there is a duty to defend an insured’s claim of acting in self-defense when the policy excludes damages that may ‘reasonably be expected.’”

 

            The court went on to distinguish supporting federal case law offered by the appellant and it concluded that based upon Thompson, supra, in conjunction with policy considerations, the intentional act exclusion could not be used in a self-defense setting.   In paragraph 31, the court concluded by indicating the following:

 

            “Additionally, while the language of the exclusions may be different, the purpose behind them is the same. The purpose behind intentional-act exclusions is to ‘prevent individuals from purchasing insurance as a shield for their anticipated intentional misconduct.’ If a person was permitted to shield his liability for intentional torts by purchasing insurance, there would no longer be a disincentive to the commission of intentional torts or the threat of a successful intentional-tort suit. However, no purpose is served by denying coverage to an insured who is legally free of misconduct when he injures another pursuant to the self-defense doctrine. Furthermore, ‘the risk that an insurance company bears in providing an intentional tort defense for an insured who claims to have acted in self-defense is calculable and, from a monetary standpoint, minimal.”

 

            Therefore, the act of self-defense was deemed to be covered under the liability insurance policy.